People v. Flag Container Service Inc.

Decision Date28 March 1991
Citation568 N.Y.S.2d 309,150 Misc.2d 523
PartiesThe PEOPLE of the State of New York v. FLAG CONTAINER SERVICE INC., Defendant.
CourtNew York City Court

Victor A. Kovner, Corp. Counsel, New York City (Marilyne Mason, of counsel), for plaintiff.

James J. Hasson, Staten Island, for defendant.

JOEL M. GOLDBERG, Judge:

In a matter of statutory construction of § 19-122(a) of the New York City Administrative Code, the issue presented is whether a Department of Transportation street use permit must be obtained by owners of rubbish containers and dumpsters who provide these items to builders.

Flag Container Service Inc. is charged with numerous separate violations of § 19-122(a) of the Administrative Code in that the defendant "had placed" either a rubbish container or dumpster on a roadway without having obtained the permit required under A.C. § 19-122(a). Defendant now moves for a dismissal of the charges on the ground that the permit requirement applies only to builders who will use building material or equipment on a roadway and not to the owners of these items.

In support of its motion to dismiss, defendant alleges that it is engaged in the business of providing roll-off containers for the collection of construction and demolition debris, the recycling of this material and the collection of garbage, and that it is neither a "builder" nor in the building business.

In response, the People contend that defendant's argument is without merit since the word "builder" could encompass anyone who is using, placing or storing building equipment in the roadway. "Building equipment," the People argue, includes containers and dumpsters when they are used to carry and store debris resulting from demolition.

Resolution of this issue lies in an interpretation of the term "builder" as it is used in A.C. § 19-122.

Administrative Code § 19-122 provides, in pertinent part:

a. Permit. The commissioner shall have power to grant permits to builders to occupy not more than one-third of the roadway of any street with building material and equipment if, in his or her opinion, the interests and convenience of the public will not suffer thereby. At the time of placing such material or equipment in the street, the permit so granted shall forthwith be posted in a conspicuous place on or near the material or equipment and shall be kept there so as to be readily accessible to inspection. (emphasis added)

Although the Administrative Code does not define "builder", it is not synonymous with "owner", if these words are to be given their natural and obvious meanings according to ordinary usage. See, McKinney's Cons. Laws of N.Y., Book 1, Statutes, §§ 94 and 232.

In fact, the very statute under consideration places a separate responsibility on the "owner" of building material and equipment.

An examination of A.C. § 19-122(b)(3) reveals that:

All building material and equipment shall have printed thereon the name, address and telephone number of the owner thereof. (emphasis added)

That the enacting authority has distinguished between the terms "builder" and "owner" confirms that the two terms are not synonymous and that "builder" and "owner" should not be used interchangeably in determining their respective obligations under the statute. Where a law expressly describes a particular person to which it shall apply, an irrefutable inference must be drawn that what is not included was intended to be excluded. See, McKinney's, Statutes, supra, § 240, at 411.

The primary consideration in the construction of statutes is to ascertain and give effect to the intention of the Legislature. McKinney's, Statutes, supra, § 92(a), at 177. The reason for the statute's distinction between the terms "builder" and "owner" is made apparent in subdivision (c) of § 19-122.

Section 19-122(c) provides:

c. Deposit. It shall be unlawful to grant any such permit to any builder unless, at the time such permit is granted, he or she shall have on deposit with the commissioner the sum of fifty dollars as a guarantee that he or she will promptly comply with the conditions of all permits which may be so granted, including the prompt removal of all dirt and rubbish placed upon the street from time to time, and also for the prompt removal of any building material or equipment placed upon the street thereunder, after the expiration or revocation of any such permit. (emphasis added).

Subdivision (c) requires the "builder" to pay a deposit at the time the permit is granted. Such deposit is subject to forfeiture if the site is not kept clean of debris or if the building material or equipment is not timely removed. Thus, the statutory scheme is to have the "builder" obtain a permit by posting a deposit which is subject to forfeiture if the construction site is not kept in good order. The statutory incentive for the builder to keep the site in good order would be frustrated by the People's view of the statute. If an "owner" were required to obtain the permit and post the deposit, the builder would then have no financial incentive to maintain the site in good order. That is why the statute requires the builder rather than the owner to obtain the permit and post the deposit. A statute should be given a rational interpretation consistent with achieving its purpose. McKinney's...

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  • People v. Allied Sanitation, Inc.
    • United States
    • New York Supreme Court
    • April 6, 1993
    ...Statutes § 271[c]; § 275; see also, City of New York v. Carolla, 48 Misc.2d 140, 264 N.Y.S.2d 408; cf., People v. Flag Container Co., 150 Misc.2d 523, 568 N.Y.S.2d 309). We note that the failure of the permit to include the planking requirement as an express condition does not serve to shie......

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